Birth certificate testimony previews upcoming legislative tensions

By Devon Downey, Idaho Reports

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Members of the public testify at a public hearing on a proposed rule change affecting minors who wish to change the gender markers on their birth certificates. Melissa Davlin/Idaho Reports

On Monday, the Department of Health and Welfare held a public hearing in Boise on birth certificate changes for transgender youth, with testimony that highlighted tensions likely to come up during the 2020 legislative session.

The proposed rule would require anyone under the age of 18 to get a signed form by a medical professional stating that the change requested on their birth certificate matches their gender identity.

Out of the 29 people who testified in the crowded room, 20 of them spoke against changing birth certificates at all. Many argued that birth certificates are historical documents that are a snapshot of the person at the time of their birth and therefore should not be altered. A few also argued that there is a difference between sex and gender identity, and birth certificates only state sex.

A 2018 court decision mandates that Idaho must have a process for individuals to change the gender on their birth certificate. That process has been in place since April 2018. The requirement that minors must have doctor sign-off for that change went into effect in July.

Between April 2018 and May 2019, there were 101 applications for birth certificate gender changes, according to the Bureau of Vital Statistics. Of those, 15 were for minors.

While the testimony was over two-to-one against birth certificate changes, this hearing was specific to the requirement that minors get a medical attestation prior to changing their birth certificate. IDHW held six public hearings throughout the state in August on their full rule docket on temporary rules, including the process that is already in place to change a birth certificate. Those hearings drew a handful of comments on that process.

Five people who testified specifically mentioned the proposed rule, and all of them were opposed — though they supported allowing people to change their birth certificates. 

“All my identity documents are now congruent with my name and gender identity,” said Emilie Jackson-Edney, one of the women who spoke in opposition to the medical form required for minors. “All of these allow me to navigate smoothly through society.”

“It is necessary for youth to be able to have records that accurately reflect their gender identity,” said Annie Hightower of the Idaho Coalition Against Sexual and Domestic Violence.  Hightower does not “think there should be additional burdens on youth being able to do that.”

The hearing drew a handful of lawmakers, including Reps. Steve Harris, Dorothy Moon, Tammy Nichols, and Melissa Wintrow, as well as Sen. Regina Bayer, though only Nichols and Wintrow testified.

Public hearings will continue on this proposed rule on September 24th in Twin Falls and September 25th in Idaho Falls.

Social issues like this are likely to be front and center this session due to the ongoing Adree Edmo case, concerning an Idaho inmate who has asked for, and has been denied, gender confirmation surgery. After the Ninth Circuit ruled in favor of Edmo, Governor Brad Little has appealed to the United States Supreme Court, and the legislature may act to prevent future cases like Edmo’s. 

Lawmakers have also discussed reexamining higher education funding because of the cost of some diversity and inclusion programs, like Black Graduation, Rainbow Graduation, and proposed gender-inclusive restrooms at Boise State University. “The taxpayers are paying for to help fund these universities, and basically, we’re paying for our kids to be indoctrinated,” Rep. Tammy Nichols, R-Middleton, told Breitbart News Saturday in a September 21st interview.

Idaho Reports will continue to report on these issues and more leading up to the upcoming legislative session.

Melissa Davlin contributed to this report.

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Vaping industry has already laid groundwork for potential legislative fights

By Melissa Davlin, Idaho Reports

Tuesday’s news that the Idaho Department of Health and Welfare had confirmed its first two cases of vaping associated respiratory illness in the state only added to the national discussion over what, if anything, should be done about e-cigarettes. But the debate on vaping has already started in Idaho.

In the Secretary of State’s lobbyist database, Idaho Reports found four vaping-related companies that employ a total of seven lobbyists. Those companies include Swisher, a sister company to electronic cigarette company E-Alternative Solutions; vaping industry leader Juul; Altria, which owns multiple tobacco companies like Phillip Morris and has a 35 percent stake in Juul; and Reynolds American Incorporated, which owns RJ Reynolds Vapor.

Altria, by far, was the biggest spender. In 2019, Sacramento-based Altria lobbyist Amanda Klump reported spending a total of $16,926,01, making her the sixth on the list of highest-spending lobbyists this year, according to the Secretary of State’s office. Those expenses included spending $500 for inaugural ball tickets for House Majority Leader Mike Moyle and his wife, Idaho State Tax Commissioner Janet Moyle, in January.

Altria has also donated to a number of Idaho legislative candidates, giving about $23,000 in the 2018 election cycle alone.

During the 2019 legislative session, Klump reported spending related to lobbying on three specific bills: the two voter initiative bills that were ultimately vetoed by Gov. Brad Little, and a bill that would have added a 15 percent tax to electronic cigarettes. The latter bill, sponsored by Reps. John Gannon and Greg Chaney, stalled in the House Revenue and Taxation Committee in late March.

Chaney told Idaho Reports on Wednesday that Gannon had been the driving force on the bill. As for whether it will come back in the 2020 session? “In light of recent events, it would be even more relevant,” Chaney said.

The tobacco industry as a whole isn’t immune to the recent scrutiny on vaping. The news that two Idahoans have been hospitalized for vaping-associated lung issues prompted Senate Health and Welfare Chairman Fred Martin to post on social media that he wants to raise the smoking age from 18 to 21.

“It is now time to pass the Tobacco 21 bill (that I have introduced twice),” Martin wrote on a public Facebook post. “It would help to keep e-cigarettes out of the hand of middle and high schoolers before more of our children are harmed.”

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Schroeder, Zito announce plans to run for open Dist. 23 Senate seat

By Melissa Davlin, Idaho Reports

We’re six months from the filing deadline for the 2020 legislative races, and already, we have a competitive primary contest.

On Tuesday, Senate Transportation Committee chairman Bert Brackett, R-Rogerson, announced he will not seek a seventh term in office.

Soon after, Mountain Home attorney Geoffrey Schroeder announced he will run for the spot. Schroeder is the former president of the Mountain Home City Council, and was previously active in the Elmore County Repubican Party. Schroeder also served in the Idaho National Guard.

Schroeder told Idaho Reports he is “excited to have the chance to represent District 23 in the Senate.”

On Thursday, Rep. Christy Zito, R-Hammett, announced she also plans to run for the open seat.

“As much as I love my colleagues in the House, I believe that I can bring a much needed conservative perspective to the Idaho Senate,” Zito said in a press release. “Too often we see good, conservative legislation die or get ignored in the Senate, and I hope to change this.”

Zito was first elected in 2016 and currently serves on the House Agriculture, Judiciary, and State Affairs committees. During the 2019 session, she was the lead sponsor for a bill that lowered the age for concealed carry within city limits to 18 years old. Gov. Brad Little signed that bill into law in April.

District 23 encompasses Elmore and Owyhee counties, and has had a host of fascinating legislative races since the 2012 redistricting fight. Redistricting pitted sitting senators Brackett and Tim Corder against each other in the primary, in which Brackett beat Corder with 57 percent of the vote.

The 2016 primary was another hotly contested year for the district, with incumbent representatives Rich Wills and Pete Nielsen losing to newcomers Zito and Megan Blanksma, respectively.

Schroeder had previously served as Blanksma’s campaign treasurer. Blanksma, who is now the House Majority Caucus Chair, told Idaho Reports he is no longer in that role, and she is staying neutral on this Senate race.

 

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Immunization requirements dominate IDHW rules testimony

By Melissa Davlin, Idaho Reports

At the first hearing for Idaho Department of Health and Welfare’s reauthorized rules, one subject dominated the testimony: What role, if any, the government should play in compelling parents to immunize their children.

Of the 23 people who testified at Thursday’s hearing in Boise, all but one touched on immunization requirements. Most focused their entire testimony on vaccines.

Fourteen opposed state mandates, while eight encouraged the state to keep the current vaccination rules on its books. Some limited their testimony to the philosophy behind state mandates, while others got into the science of and claims about vaccinations.

Idaho already has permissive immunization exemption rules. This year, the legislature made permanent rules that further loosen guidelines by allowing exemption notes on any piece of paper, as opposed to asking parents to fill out a form provided by the school, district or daycare. This change came as other states, like Maine and New York, tightened up their immunization requirements, disallowing any exemptions other than for medical reasons. (See a map of school immunization requirements by state here, via the National Conference of State Legislatures.)

Idaho’s immunization rate among students dropped last school year, with 7.7 percent of students opting out of the mandated vaccinations. That’s up from 6.9 percent from the previous year, according to Kevin Richert of Idaho Education News. IDHW data shows the majority of those exemptions were for religious or other reasons, with just a small percentage of students — .3 percent – claiming medical reasons for exemptions.

According to the Centers for Disease Control and Prevention, 1,203 measles cases have been confirmed this year in the United States as of Aug. 15, with the majority of those cases occurring in people who have not been vaccinated.

Both IDHW and the Idaho State Department of Education have encouraged guardians to vaccinate their children. Last year, Superintendent of Public Instruction Sherri Ybarra co-wrote a letter to then-IDHW director Russell Barron, outlining a 94 percent immunization rate. (Read more from Kevin Richert of Idaho Education News here.) And IDHW’s most recent blog post was on National Immunization Month. “High immunization rates across communities protect the health of those who are the most vulnerable for serious complications related to vaccine-preventable diseases, including infants and young children, the elderly, and people with chronic health conditions,” the post reads.

Other topics touched on in Thursday’s public comments include child welfare investigations and tests performed on newborn babies.

The hearing concerned existing rules that were reauthorized this year. As the state is so far along in the rulemaking process, it’s going to be difficult to make any changes before the final publication of rules in November, said Tamara Prisock, administrator of licensing and certification, at the Idaho Department of Health and Welfare’s Board of Directors meeting last week.

IDHW has five more public hearings on the existing rules scheduled throughout the state:

Aug. 23: 1 to 4 pm MDT, 150 Shoup Ave, 2nd Floor Conference Room, Idaho Falls

Aug. 26: 9 am to noon PDT, 1120 Iron Wood Drive, Lower Level Conference Room, Coeur d’Alene

Aug. 27: 10 am to noon PDT, 1118 F Street, 3rd Floor Conference Room, Lewiston

Aug. 27: 3 to 4:30 pm, 108 Grangeville Truck Route, Grangeville

Aug. 28: 1 to 4 pm, 601 Pole Line Road, Main Conference Room, Twin Falls

As for the department’s new rule dockets, each of those have their own hearings, or have already had hearings, Prisock said.

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IDHW holding public hearings on rules

By Melissa Davlin, Idaho Reports

The Department of Health and Welfare is holding six public hearings throughout the state on its administrative rules. 

Because all of the rules were reauthorized this year, the public is invited to comment on any of the department’s existing rules, said Tamara Prisock, administrator of licensing and certification, at the department’s board of directors meeting on Thursday. So far, the department has received petitions on rules regarding immunizations at both public schools and licensed daycares, Child Protective Services, testing for newborns, and consent for medical services. 

There’s a caveat, though: As the state is so far along in the rulemaking process, it’s going to be difficult to make any changes before the final publication of rules in November, depending on the nature of the rule, Prisock said. 

As for the department’s new rule dockets, each of those have their own hearings, or have already had hearings, Prisock said. Those new rules concern emergency medical services, clinical laboratories, gender marker changes on birth certificates, immunization requirements, and more. You can find those new rules here. 

Of the department’s 83 original rule chapters, 71 were reauthorized. The department has identified another 12 with outdated or repetitive language that it plans to amend. Those amendments won’t include substantive policy changes, Prisock said. 

The department also plans to reduce the number of so-called restrictive words — words like “must,” “shall” and “prohibited” — by July 1, 2021. The department has identified 11,158 restrictive words in its 71 chapters, and plans to reduce that by 20 percent, to just under 9,000.

Here are the dates and locations of the rule hearings:

Aug. 22: 1 to 4 pm MDT, 3232 Elder Street, Conference Rooms D East and D West, Boise

Aug. 23: 1 to 4 pm MDT, 150 Shoup Ave, 2nd Floor Conference Room, Idaho Falls

Aug. 26: 9 am to noon PDT, 1120 Iron Wood Drive, Lower Level Conference Room, Coeur d’Alene

Aug. 27: 10 am to noon PDT, 1118 F Street, 3rd Floor Conference Room, Lewiston

Aug. 27: 3 to 4:30 pm, 108 Grangeville Truck Route, Grangeville

Aug. 28: 1 to 4 pm, 601 Pole Line Road, Main Conference Room, Twin Falls

 

Gender markers on birth certificates

One of the pending rules has drawn robust discussion from the public and the board: Applications for gender marker changes on birth certificates.

In May, the board voted to require a medical attestation for minors applying for gender marker changes. (Read more about that, as well as the legal fight over the birth certificate changes, here.) That rule went into effect on July 1st; Since then, one minor has applied for a gender marker change.

Elke Shaw-Tulloch, administrator of public health, gave the board an update on how many people have applied to change their birth certificates since the state changed its policy in April 2018. In total, the state has seen 116 applications, with applicants’ ages ranging from 7 to 78 years old. In that time, 15 applications have come from minors.

Sen. Fred Martin, R-Boise and chairman of the Senate Health and Welfare Committee, noted that some of his colleagues in the legislature originally wanted medical sign-offs for gender marker change applications for both adults and minors. Though he felt good about the board’s May decision, he said he didn’t know how the legislature would handle the rule change in the upcoming 2020 session.

 

Confused on the rules process? Here’s a chart prepared by IDHW.

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Courtesy Idaho Department of Health and Welfare.

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Friends in high places: About those Garth Brooks constituent letters…

By Melissa Davlin, Idaho Reports

Two months ago, Gov. Brad Little made headlines for appealing to country music star Garth Brooks to add another Boise concert to his tour.

In a May 22 video, Little tells Brooks that a few constituents had asked him to request the additional show after the first concert quickly sold out.

“If it happens, it will be because of this phone calls,” Brooks told Little.

All in good fun, sure. But it got me wondering: Outside of the chaos of the legislative session, what do people contact the governor’s office about? And how many people really contacted Little about another Garth Brooks concert?

Idaho Reports submitted a public records request for all constituent comments submitted to Little’s office during the week-long period between when the first Garth Brooks concert sold out and the release of the video.

In that time period, Little received 114 constituent e-mails and three voicemails. This number does not include social media comments to Little’s accounts. 

Of those, three were about the Garth Brooks concert. Two asked for more shows, and one asked for an investigation of ticket resellers.

The rest dealt with a range of issues. A plurality of messages, 23, were related to the environment, including salmon, flood control, nuclear issues and a proposed smelter in Washington near the Idaho border. 

Sixteen concerned judicial issues, including sentencing reform, probation and parole, the conditions of county jails, and the death penalty. Fourteen people wrote to Little about abortion, with the majority asking for legislation restricting abortion access. 

Only six discussed education-related topics. 

Most of the rest dealt with a grab bag of subjects, including licensing, regulations, invitations to events, texting while walking, and a couple pieces of hate mail. 

 

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Idaho Supreme Court decision on warrantless arrests may affect domestic violence complaints

By Melissa Davlin, Idaho Reports

The Idaho Supreme Court has ruled that officers cannot arrest suspects for misdemeanor offenses without warrants if they have not observed the alleged crime, a decision which justices acknowledged will impact officers’ ability to respond to domestic violence calls.

In the unanimous opinion for State v Clarke, authored by now-retired Justice Joel Horton, the court overturned a conviction for Peter O’Donald Clarke for possession of methamphetamine, marijuana, and paraphanelia, all of which were found during a search of Clarke as he was being arrested for misdemeanor battery.

Clarke had been accused of harassing and groping a woman on a Coeur d’Alene beach, touching her without her consent and following her and her son when they tried to leave. Clarke argued that because the responding officer had not witnessed the alleged harassment, the arrest violated both the Idaho and United States constitutions.

The justices agreed, citing Article 1, Section 17 of the Idaho Constitution, which prohibits warrantless arrests.

That has big implications for officers’ ability to respond to misdemeanor domestic violence situations, said Dr. Lisa Growette Bostaph of Boise State University’s Criminal Justice department.

The justices acknowledged the impact of the opinion, noting that Idaho Code allows officers to intervene in domestic violence situations, even if they have not witnessed the alleged incident.

“We are fully mindful of the significance of this conclusion,’ Horton wrote, noting that “domestic violence is a serious crime that causes substantial damage to victims and children, as well as to the community.”

“Nevertheless, the extremely powerful policy considerations which support upholding Idaho Code section 19-603(6) must yield to the requirements of the Idaho Constitution,” the opinion says.

In other words, it doesn’t matter how well-intentioned the statute is if it violates the constitution, and a change to the constitution is likely the only potential remedy.

In the meantime, this ruling will make it significantly harder for officers to respond to alleged domestic violence.

“Unless officers, when they respond, believe a felony has been committed, or unless they witness the actual domestic violence themselves, they will not be able to arrest on-site. They will have to get a warrant and come back,” Bostaph said. “They will not have the legal means when they respond to remove the offending party from their home. They can ask them to leave, but they cannot force them to leave.”

The same will apply to reports of misdemeanor protection order violations and other crimes. If the alleged crime isn’t happening while the officer responds, and the officer doesn’t witness it, they will have to obtain a warrant if they don’t believe a felony has occurred. 

Bostaph said she didn’t want to speculate on how this will affect domestic violence victims and families.

“It’s going to be an unfortunate experiment,” she said. “But to say that I’m nervous, to say that I’m anxious, is not an overstatement.”

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New details in Parker arrest: Coconut oil, conflicting explanations, and a mystery woman

By Devon Downey, Idaho Reports

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When former Idaho Republican Party chairman Jonathan Parker was arrested for first-degree stalking late last month, the responding officers found him in the bushes wearing a long black wig and with coconut oil on his hands, prosecutors alleged during the probable cause hearing.

The individuals who notified police reported that there was a man in a wig seemingly masturbating in their bushes, and that they had seen him peering into their windows while hiding in their dumpster enclosure.

As previously reported, Parker told officers that he was there to “scare” another woman who lived in the complex. Prosecutors said that the responding officers were told that she was an individual whom Parker was dating.

When asked by officers where she was staying and where she was, he could not tell them. Officers were unable to make contact with her, and in the probable cause hearing, it was unclear who the woman was, or if officers knew her identity.

David Leroy, former Idaho Attorney General and attorney for Parker, had claimed during the arraignment hearing that Parker was outside of the protection order area.

However, prosecutors alleged during the probable cause hearing that Parker’s estranged wife lives 100 feet away from where he was found, violating the then 100-yard protection order his wife had. During Parker’s arraignment hearing, Judge Annie McDevitt extended the protection order to 500 feet.

Prosecutors made no reference to a costume party during the hearing, as Leroy claimed during the arraignment.

According to court records, Parker was released on bail. His next hearing will be held on Friday, June 14th.

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Idaho Supreme Court upholds state police whistleblower case, opens door to higher damages

By Melissa Davlin, Idaho Reports

The Idaho Supreme Court on Friday ruled firmly in favor of an Idaho State Police whistleblower, former crash reconstructionist Brandon Eller. In a unanimous decision, the court rebuffed claims that Eller’s case did not qualify under the state Whistleblower Act and reversed a previous decision to cap his damages. Read the ruling here.

Eller sued ISP in 2015 under the Whistleblower Act. He claimed his employer retaliated against him after he testified against a Payette County Sheriff’s deputy who was involved in a fatal crash while responding to a 911 call in 2011. That deputy was later charged for a time with felony vehicular manslaughter. Eller also objected to an ISP policy that directed officers to destroy all but the final drafts of crash reconstruction reports, raising concerns that it violated the law.

In his lawsuit, Eller claimed a commanding officer accused him of lying in the stand. He received a downgrade in his performance review, and ISP later reassigned him. Eller resigned in 2014.

A lower court ruled in Eller’s favor, with a jury awarding him $1.5 million in damages. ISP challenged that award and the district court reduced it to $1 million, citing the Idaho Tort Claims Act, which limits damages.

Both ISP and Eller then appealed the case to the Supreme Court. Along with disagreement over the damage cap, ISP argued Eller’s actions were “routine job performance” that when paired with his “speculative and unproven” concerns, didn’t qualify for whistleblower protection, Friday’s ruling states.

The ruling, written by Justice Richard Bevan, concludes both Eller’s involvement in the crash case and his later concerns clearly qualify him for the protections of the Whistleblower Act.

And in a decision with clear implications for other state whistleblower cases, Bevan said Eller’s damages should be governed by the Whistleblower Act, not the Tort Claims Act. The provisions of the former are more specific to this case, he wrote: “Idaho law provides: ‘Where a statute is clear and unambiguous, the expressed intent of the legislature shall be given effect without engaging in statutory construction.’ In addition, where two statutes conflict, courts should apply the more recent and more specifically applicable statute.

“… Rather than protect individuals as victims of general governmental torts and damages—as under the ITCA — the Whistleblower Act provides an unambiguous ‘legal cause of action for public employees who experience adverse action from their employer as a result of reporting waste and violations of a law, rule or regulation,’” the opinion says.

One key difference between the two statutes: The Whistleblower Act doesn’t limit damages, while ITCA limits damages to $500,000 for each claim. Eller had two claims against ISP. The Supreme Court ordered the lower court to revisit Eller’s damages under the Whistleblower Act, without the $500,000-times-two limit.

In other words, this case could get a lot more expensive for ISP.

Nate Poppino contributed to this report.

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IDHW recommends eliminating 12 of 83 rule chapters

By Melissa Davlin, Idaho Reports

The Idaho Department of Health and Welfare has identified 12 administrative rules chapters that it says are no longer needed — and is bracing itself for a potential huge workload in upcoming months.

During the Thursday IDHW board of directors meeting, Tamara Prisock, Division Administrator for Licensing and Certification, said IDHW currently has 83 chapters of rules. After the 2019 Legislature didn’t reauthorize administrative rules at the end of the session, Gov. Brad Little instructed each department to review its existing rules and make recommendations as to which the state should keep. (Read about that fight here.)

Over the last month, IDHW reviewed each of the existing 83 chapters, and found 12 that were either redundant, as they were addressed elsewhere in statute or other rules, or no longer needed, as they were written for programs that no longer exist. Click here for a list of those chapters, as well as the justifications for eliminating them.

The process doesn’t allow for going through the rules with a fine-tooth comb and eliminating individual lines. Instead, departments had to consider entire chapters.

“In the reauthorization, it had to be all or nothing,” Prisock said.

But that isn’t the end of the work, Prisock said. At the beginning of June, each agency will publish two notices: One that lists all fee rule chapters, and one that lists all non-fee rule chapters, that the state wants to reauthorize. Though many of those rule chapters have been in place for decades, they will all be listed as temporary proposed rules.

As temporary proposed rules, each will be subject to a 3-week public comment period. During that comment period, if 25 or more people request a public hearing on an individual chapter, the department is required to have one, Prisock said.

“There could be a significant amount of work that comes out of publishing those two notices in June,” she said.

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